[Electoral Divisions: Kirkby Stephen]
To consider a report from the Executive Director – Economy and Infrastructure (copy enclosed)
The Development Control and Regulation Committee considered a report from the Executive Director – Economy and Infrastructure which detailed an
application received from Paul Ewbank Dixon to amend a right of common, exercisable over two commons, and recorded at entry no. 3 of unit no. CL93 North and East Mallerstang Common and at entry 2 of unit no. CL94 Western Mallerstang Common in the registers of common land.
In relation to the ‘right to graze’ the Applicant claimed that portions of the Right were severed from the land as a result of a conveyance that occurred pre 5 April 1978, a conveyance dated 20 July 1978, a conveyance dated 29 January 1979, a conveyance dated 28 March 1990, a conveyance dated 17 February 1994 and a transfer dated 19 January 2001. The conveyance dated 28 March 1990 expressly stated that the rights were not transferred with the land, whilst three of the other Transfer Documents were silent on the matter.
The Applicant had thus far been unable to provide copies of the remaining two Transfer Documents, the pre 5 April 1978 conveyance and the 29 January 1979 conveyance. All claims were backed up by a statutory declaration and evidence showing the continued use of the rights
One representation was received from the Open Spaces Society. The Applicant responded to the Objection and Cumbria County Council allowed for some further correspondence between both parties as it as felt this would be beneficial to producing a more robust recommendation.
The Objection centred upon the principle that if a particular conveyance was silent on the matter of grazing rights then it was presumed that the rights transferred with the land. However, the objector himself referred to regulation 41(3)(b) of The Commons Registration (England) Regulations 2014 which stated that a determining authority may treat a right of common as having been severed if it was satisfied that the severance was lawful and there was evidence that the right of common had been treated since the qualifying event as having been severed.
The officer had considered the objection and the subsequent correspondence with the Applicant and concluded that, on the balance of probabilities, the Applicant has satisfied the requirements of regulation 41(3).
The officer was therefore recommending that members resolve that the Registers of Common Land be amended and the proportion of the Right currently registered as attached to the fields sold within the Transfer Documents was registered as severed and held in gross.
This was proposed and seconded and put to a vote and with 17 for and 0 against, it was
RESOLVED that, members accept the application and amend the registers of common land on the grounds that severance of parts of the right of common occurred pre 5 April 1978, and on the 20 July 1978, 29 January 1979, 28 March 1990, 17 February 1994 and 19 January 2001 respectively, and that severance should be recorded in the register as a qualifying historic event under Schedule 3 to the Commons Act 2006.